Federal Register/Vol. 86, No. 7/Tuesday, January 12, 2021/Rules
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2246 Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations document in electronic format for the Executive Secretary of the FDIC. appointed by the Board, the FDIC is publication, as an official document of These functions include but are not making technical changes to part 308 to the Department of Energy. This limited to: (1) Serving in place of an ALJ update outdated references to certain administrative process in no way alters when no ALJ has jurisdiction over an position titles. administrative proceeding; (2) issuing the legal effect of this document upon II. Exemption From Public Notice and rulings in certain administrative publication in the Federal Register. Comment proceedings; and (3) serving as the Signed in Washington, DC, on December Section 553 of the Administrative 21, 2020. custodian of records for administrative Procedure Act (APA) (5 U.S.C. 553) sets Treena V. Garrett, proceedings. See generally, 12 CFR 308.102(b) and 308.105. forth requirements for providing the Federal Register Liaison Officer, U.S. On June 21, 2018, the U.S. Supreme general public notice of, and the Department of Energy. Court held that the ALJs employed by opportunity to comment on, proposed [FR Doc. 2020–28599 Filed 1–11–21; 8:45 am] the U.S. Securities and Exchange agency rules. However, unless notice or BILLING CODE 6450–01–P Commission (SEC) were ‘‘inferior hearing is required by statute, those officers’’ of the United States under the requirements do not apply to Appointments Clause of the United interpretive rules, general statements of FEDERAL DEPOSIT INSURANCE States Constitution because these ALJs policy, or rules of agency organization, CORPORATION hold a continuing office established by procedure, or practice. See 5 U.S.C. law, and they exercise ‘‘significant 553(b)(A). 12 CFR Part 308 discretion’’ in connection with certain The FDIC is updating part 308, its RIN 3064–AF69 ‘‘important functions’’ when presiding rules of practice and procedure, to over administrative hearings. Lucia v. substitute the Administrative Officer for FDIC Rules of Practice and Procedure; SEC, 138 S. Ct. 2044, 2053–2054 (2018) the Executive Secretary in multiple Technical Revisions (Lucia). As inferior officers, the places. Since the changes relate to Supreme Court held that the SEC’s ALJs agency organization, procedure, or AGENCY: Federal Deposit Insurance are ‘‘subject to the Appointments Clause practice, the rules are being published Corporation. and as such, can only be appointed by in final form without public notice and ACTION: Final rule. the President, ‘‘Courts of Law’’ or comment. SUMMARY: The Federal Deposit ‘‘Heads of Departments.’’ See, Lucia, III. Regulatory Analysis Insurance Corporation (FDIC) is 138 S. Ct. 2044, 2046. A. Congressional Review Act amending its rules of practice and Although the Lucia decision did not procedure to codify the agency’s directly affect the FDIC or the ALJs for Under the Congressional Review Act longstanding practice of having certain the FDIC, the Board nevertheless elected (CRA), ‘‘[b]efore a rule can take effect, adjudicative functions performed by an to formally appoint the ALJs that the Federal agency promulgating such inferior officer of the United States preside over FDIC enforcement rule shall submit to each House of the appointed by the FDIC’s Board of proceedings. The ALJs who were Congress and to the Comptroller General serving at the time of the Lucia decision Directors (Board). Additionally, the a report containing—(i) a copy of the were appointed by the Board on July 19, FDIC is making other technical edits to rule; (ii) a concise general statement 2018. See FDIC Board Resolution its rules of practice and procedure to relating to the rule, including whether it 085152. Since that time, the Board has update references to certain positions is a major rule; and (iii) the proposed appointed all ALJs that preside over 1 within the FDIC Legal Division whose effective date of the rule.’’ The CRA FDIC enforcement proceedings. titles are outdated. further defines the term ‘‘rule’’ as Since the Lucia decision, the FDIC has having ‘‘the meaning given such term in DATES: The final rule is effective on received questions regarding whether January 12, 2021. section 551, except that such term does the FDIC’s Executive Secretary was also not include—(A) any rule of particular FOR FURTHER INFORMATION CONTACT: appointed in a manner consistent with applicability . ; (B) any rule relating Romulus A. Johnson, Counsel, Legal the Supreme Court’s ruling in Lucia. In to agency management or personnel; or Division, (202) 898–3820, romjohnson@ fact, the Board duly appointed the (C) any rule of agency organization, fdic.gov; Josephine M. Bahn, Senior FDIC’s current Executive Secretary as an procedure, or practice that does not Attorney, Legal Division, (202) 898– inferior officer on June 22, 1997, substantially affect the rights or 6576, [email protected]; or Nicholas S. pursuant to Article II of the United obligations of non-agency parties.’’ 2 Kazmerski, Counsel, Legal Division, States Constitution and 12 U.S.C. The FDIC is updating part 308, its (202) 898–3524, [email protected]. 1819(a) (Fifth) (allowing the FDIC to rules of practice and procedure, to SUPPLEMENTARY INFORMATION: ‘‘appoint by its Board of Directors such clarify that certain adjudicative officers and employees as are not I. Background functions, specified in part 308 as being otherwise provided for in this chapter’’). performed by the FDIC’s Executive Administrative enforcement Nonetheless, in the interest of Secretary or Assistant Executive proceedings brought by the FDIC are transparency and to assuage any Secretary, will be performed by an subject to the Administrative Procedure outstanding concerns about this issue, ‘‘Administrative Officer’’ or ‘‘Assistant Act (APA), 5 U.S.C. 551 et seq., and the we are amending part 308 to clarify and Administrative Officer’’ who has been FDIC Rules of Practice and Procedure, to expressly provide that such duly appointed by the Board. 12 CFR part 308. Under part 308, adjudicative functions will continue to Additionally, the FDIC is updating evidentiary hearings and related be performed by an inferior officer of outdated references to certain position proceedings are generally presided over the United States (Administrative titles in part 308. These amendments do by an Administrative Law Judge (ALJ). Officer) that has been duly appointed by not constitute substantive changes, but See generally, 5 U.S.C. 556; 12 CFR the Board. merely conform the titles in the 308.5, and 308.3. Additionally, part 308 In addition to clarifying that these provides that certain procedural and adjudicative functions are performed by 1 5 U.S.C. 801(a)(1)(A). adjudicative functions are reserved to an Administrative Officer that is duly 2 5 U.S.C. 804(3). VerDate Sep<11>2014 16:05 Jan 11, 2021 Jkt 253001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\12JAR1.SGM 12JAR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations 2247 regulation to the current titles of these quarter that begins on or after the date § 308.3 Definitions. positions. on which the regulations are published * * * * * The clarifications relate to agency in final form.4 The FDIC has determined Administrative Officer means an management and personnel, and to that the rule would not impose inferior officer of the Federal Deposit agency practice and procedure. Further, additional reporting, disclosure, or other Insurance Corporation, duly appointed to the extent that non-agency parties are requirements; therefore the by the Board of Directors of the Federal impacted by the amended rules (i.e., requirements of the RCDRIA do not Deposit Insurance Corporation to serve they may be required to submit requests apply. as the Board’s designee to hear certain and documents to the attention of the motions or requests in an adjudicatory E. Plain Language Administrative Officer rather than the proceeding and to be the official Executive Secretary), their rights and Section 722 of the Gramm-Leach- custodian of the record for the Federal obligations will not be substantially Bliley Act 5 requires the Federal banking Deposit Insurance Corporation. affected. As such, submission to agencies to use ‘‘plain language’’ in all * * * * * Congress and the Comptroller General is proposed and final rules published after Assistant Administrative Officer not required for the rules to become January 1, 2000. In light of this means an inferior officer of the Federal effective. requirement, the FDIC has sought to Deposit Insurance Corporation, duly present the final rule in a simple and B. Paperwork Reduction Act appointed by the Board of Directors of straightforward manner. the Federal Deposit Insurance This rule does not propose new or Corporation to serve as the Board’s revisions to existing ‘‘collection[s] of List of Subjects in 12 CFR Part 308 designee to hear certain motions or information’’ as that term is defined Administrative practice and requests in an adjudicatory proceeding under the Paperwork Reduction Act of procedure, Bank deposit insurance, upon the designation or unavailability 1995, Public Law 104–13, 44 U.S.C. Banks, banking, Claims, Crime, Equal of the Administrative Officer. chapter 35, and its implementing access to justice, Fraud, Investigations, regulations, 5 CFR part 1320. Lawyers, Penalties, Savings * * * * * associations. Decisional employee means any C. Regulatory Flexibility Act member of the Federal Deposit The Regulatory Flexibility Act (RFA) 12 CFR Chapter III Insurance Corporation’s or (5 U.S.C. 601–612) does not apply to a Authority and Issuance administrative law judge’s staff who has not engaged in an investigative or rulemaking where a general notice of For the reasons stated in the proposed rulemaking is not required. (5 prosecutorial role in a proceeding and preamble, the FDIC amends 12 CFR part who may assist the Board of Directors, U.S.C.